Scotland Bill

Debate between Baroness D'Souza and Lord Norton of Louth

Tuesday 8th December 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I shall speak also to Amendment 3, which is also in my name. The purpose of the amendments is to leave out subsections (1) and (2) of the proposed new section. I have tabled them to enable my noble friend the Minister to justify the inclusion of these subsections. I am aware that they derive from the recommendations of the Smith commission. Paragraph 21 of the report states:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.

However, there is nothing in that report to justify the recommendation. In his foreword the noble Lord, Lord Smith of Kelvin, said:

“The Scottish Parliament will be made permanent in UK legislation”—

but that exhausts references to the proposal.

During Second Reading, I touched upon my concerns with both subsections. One concern I raised in response to an intervention by the noble and learned Lord, Lord Hope of Craighead. It was that the recommendation falls outside the terms of reference of the Smith commission. The commission was established to make recommendations for further devolution of powers to the Scottish Parliament. These subsections do not provide for the further devolution of powers. We are in something of a double bind. The Smith commission did not produce a reasoned report but, rather, a list of recommendations, and the Government committed themselves in advance to implementing its recommendations. The justification for the provisions of the Bill is thus generic: that they deliver on the commission’s recommendations. What we lack is a clear exposition of the reasoning behind each provision. The Government, in effect, offered the commission a blank cheque and I do not think that it is our task to cash it without questioning the transaction.

The other concern I raised was that the provisions fly in the face of the Government’s own guidance on making legislation. I quoted the most recent edition of the Cabinet Office’s Guide to Making Legislation, published in July, which stated at paragraph 10.9:

“Finally, when writing instructions … to keep in mind the general rule that a bill should only contain legislative propositions. These are propositions that change the law—they bring about”,

a change in the law,

“that would not exist apart from the bill”.

The guide goes on to record:

“It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law”.

I have not sought to omit new subsection (3) because that does contain a legislative proposition, albeit one that merits amendment.

The wording of Clause 1 was discussed in Committee in the other place and it was amended on Report. However, the discussions took as given that there should be a provision stipulating that the Scottish Parliament and Government were permanent. The debate itself was somewhat disjointed, given that the amendments were considered with others. There was no sustained debate focused on subsections (1) and (2).

The Scottish Parliament was created under Section 1(1) of the Scotland Act, and there is nothing in that Act that limits its existence. What then do new subsections (1) and (2) add to the statute book? What is the relationship between these subsections and subsection (3)? New subsection (3) establishes that the Parliament and Government of Scotland,

“are not to be abolished except on the basis of a … referendum”,

in Scotland. It could be argued that this subsection qualifies subsections (1) and (2), given that it envisages circumstances under which the Parliament and Government cease to be permanent. However, it may also be argued that they confuse rather than clarify.

The Constitution Committee noted in its report on the draft clauses that Clause 1 creates,

“the potential for misunderstanding or conflict over the legal status of the Scottish Parliament which may result in legal friction in the future”.

It went on to state:

“If there are different interpretations as to the status of the Scottish Parliament in its present constitutional configuration then it is not implausible that Clause 1 could be interpreted by certain judges to be a form of entrenchment that could not then be repealed by Westminster legislation without the consent either of the Scottish Parliament or the Scottish people voting in a referendum”.

The committee returns to the point in its report on the Bill, drawing attention to the problem with the revised wording, which, it says in paragraph 36, risks,

“introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none”.

The problem is exacerbated by the removal of the word “recognised”.

New Section 63A(1) states that the Parliament and Government are permanent, and subsection (2) may be read as affirming that this section is Parliament’s commitment to that. The political reality is that the Scottish Parliament is permanent—that is not in doubt. Why then introduce these new subsections? They raise more questions than they answer. If they are to remain in the Bill, it would be prudent to accept Amendment 9, tabled by my noble friend Lord Forsyth of Drumlean, which would add:

“Nothing in this section alters the sovereignty of the United Kingdom Parliament”.

I can anticipate some of the arguments that may be deployed by the Minister against that amendment, but those arguments could be utilised in respect of new subsections (1) and (2). I invite my noble friend the Minister to provide the Government’s substantive thinking behind new subsections (1) and (2) and thus get it on the record. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

My Lords, if this amendment is agreed to, I cannot call Amendment 2 by reason of pre-emption.